OAKLAND – A long-term care facility is waiting to see which
court of appeals will hear its case after the National Labor Relations Board
refused Aug. 24 to reconsider a previous ruling that the facility violated the
National Labor Relations Act.
In May, in a 2-1 decision, the board ordered
American Baptist Homes of the West, doing business as Piedmont Gardens, to
reinstate workers it replaced after a strike. The board ruled that Piedmont
Gardens broke parts of the labor law by delaying reinstatement of striking
workers and refusing to reinstate others. It concluded that the purpose was the
punish strikers and avoid future strikes, considered “independent unlawful
purposes” under a recent ruling in another case.
Piedmont Gardens requested
reconsideration, arguing that in making its decision, the board retroactively
applied a new standard “in a grossly unlawful and unfair way,” Christopher
Foster, an associate with law firm DLA Piper in San Francisco, which represents
Piedmont Gardens, told the Northern California Record.
“A bare bones, two-member
majority has decided to impose a radical, new standard to a strike that took
place six years ago,” Foster said. “This standard is contrary to unbroken NLRB
and Supreme Court precedent going back to the 1930s. Piedmont Gardens has filed
petitions for review of the NLRB’s decisions in the D.C. Circuit and fully
expects to have its rights vindicated."
In 2010, Piedmont Gardens and the
Service Employees International Union, United Healthcare Workers-West, were at
odds over health care, pensions and disciplinary policies while negotiating an
agreement to replace an expiring contract. After several months of collective
bargaining, about 80 of the unit’s 100 employees went on strike for five days.
To prepare, the company hired 60 to 70 temporary replacement workers. Workers
had committed to return to work after the five days but Piedmont Gardens had
permanently replaced about 20 workers.
According to NLRB documents, the
company’s attorney said it hired permanent replacements “to teach the strikers
and the union a lesson,” adding that it “wanted to avoid any future strike, and
this was the lesson that they were going to be taught.”
The union brought the
issue to the NLRB. An administrative judge decided in Piedmont Gardens’ favor,
saying the employer’s reasons for replacement didn’t violate the law because
they were directly related to the strike. The majority on the three-member NLRB
panel disagreed. In its August decision, the board responded to Piedmont
Gardens’ assertion that it was wrong to apply the new standard.
respondent’s argument proceeds from an incorrect premise. The board did not
make law in this case, but, as stated in the decision and explained below,
applied existing law. Even if the decision had announced a new standard, the
respondent’s argument would fail,” the decision stated.
Foster said the NLRB’s
application of the previous case, Hot Shoppes Inc., contradicted “the core
holding” of that case and others.
“Hot Shoppes held that an employer has a
fundamental right to replace economic strikers ‘at will,’ and that the motive
for such replacements is ‘immaterial,’” Foster said. “In Hot Shoppes, the NLRB
upheld an employer’s right, even before a strike begins, to begin seeking
applications from likely replacements so that they can be hired instantly once
a strike begins. Like the Board said in a 1992 decision (Choctaw Maid Farms),
‘[i]f striking employees are economic strikers, the law allows an employer to
hire permanent replacements. What its state of mind might be in exercising that
right is irrelevant.’”
He said as it stands now, the NLRB’s ruling could have
serious repercussions for employers who use the threat of permanent
replacements as a tool in bargaining the same way a union uses the threat of a
“Unions frequently employ a strategy whereby they strike for a
relatively short period, return, and then strike at a later date if their
demands are not met, thus draining the employer's resources if they have to
staff with temporaries over and over again,” Foster said. “Given the language
of this decision, it's hard to envision any situation where an employer can
safely decide to deploy permanent replacements. This split decision has the
potential to seriously shift the balance of power envisioned by Congress when
they passed the National Labor Relations Act in the first place.”
administrative judge’s initial ruling, the union appealed the case to the 9th
Circuit Court of Appeals. Piedmont Gardens believes its appeal to the D.C.
Circuit Court will prevail because it is the aggrieved party in the NLRB